Loading...
HomeMy WebLinkAboutOrdinances - MC-08-952 - 01/21/2008 - REPEAL AND RECODIFY MC CH 31 TO 7.50 CODE HEARINGOrdinance No. MC-� 08-952 An Ordinance providing for updates to Chapter 31 of the City of McHenry Municipal Code. BE IT ORDAINED by the CITY COUNCIL of the CITY OF MCHENRY, McHenry County, Illinois as follows: SECTION 1: That Chapter 31 Code Hearing Department of the City of McHenry Municipal Code is hereby repealed and replaced with the following: MUNICIPAL CODE CHAPTER 7.50 CODE HEARING DEPARTMENT (MC-02-799, MC-02-806) Sec. 7.50-1 Providing for establishment of Code Hearing Department That 651LCS 5/1-2.2-1, et seq. "Code Hearing Departments", 65ILCS 5/11-31.1-1 et seq "Building Code Violations", and 625U CS 5/11-208.3 "Administrative Adjudication of Violations of Traffic Regulations Concerning the Standing, Parking or Condition of Vehicles", as from time to time amended, are hereby adopted in their entirety and any person charged with the violation of a municipal ordinance may be prosecuted under and in accordance with the provisions herein. Sec. 7.50-2 Code Hearing Department. The corporate authorities of the City of McHenry hereby establish a Code Hearing Department as a separate and independent agency in the municipal government. The function of the Code Hearing Department is to expedite the prosecution and correction of City code violations in the manner set forth herein. The Code Hearing Department may adjudicate any violation of a City ordinance except for any offense under the Illinois Vehicle Code or similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offenses under Section 6-204 of the Illinois Vehicle Code. Sec. 7.50-3 Instituting Code Hearing Proceedings. (A) When a police officer, building inspector, or other individual authorized to issue a code violation finds that a code violation exists, that individual shall note the violation on a multiple copy violation notice and report that indicates: (1) the name and address of the structure owner or in the event of traffic violations under Section 10, the vehicle owner; (2) the type and nature of the violation; (3) the date and time the violation was observed; (4) the names of witnesses to the violation; (5) in the event of a building code violation, the address of the structure where the violation is observed. (B) The violation report form shall be forwarded to the Code Hearing Department and a docket number shall be stamped on all copies of the report and a hearing date shall be noted on the form. The hearing date shall not be less than 30 nor more than 40 days after the violation is reported. One copy of the violation report shall be maintained in the files of the Code Hearing Department and shall become part of the record of the hearing. One copy of the report shall be returned to the individual issuing the code violations. One copy of the report form shall be served by first class mail to the defendant along with a summons commanding the defendant to appear on the specified hearing date. (C) In the event of a building code violation, if the City has an ordinance requiring property owners to register with the municipality, service may be made on the owner by mailing the report and summons to the owner's address registered with the City. If the name of the owner of the structure cannot be ascertained or if service on the owner cannot be made by mail, service may be made on the owner by posting or nailing a copy of the violation report form on the front door of the structure where the violation is found, not less than 20 days before the hearing is scheduled. Sec. 7.50-4 Subpoenas and Defaults. At any time prior to the hearing date, the hearing officer assigned to hear the case may, at the request of either party or building inspector, direct witnesses to appear and give testimony at the hearing. If the defendant or his/her attorney fail to appear on the specified hearing date, the hearing officer may find the defendant in default and shall proceed with the hearing and accept evidence relevant to the existence of a code violation. Sec. 7.50-5 Continuances and Representation at Code Hearings. No continuances shall be authorized by the hearing officer in proceedings under this ordinance except in cases where a continuance is absolutely necessary to protect the rights of the defendant. Lack of preparation shall not be grounds for a continuance. Any continuance authorized by a hearing officer under this ordinance shall not exceed 25 days. The case for the municipality may be presented by an attorney designated by the municipality or by any other municipal employee, except that the case for the municipality shall not be presented by an employee of the Code Hearing Department. The case for the defendant may be presented by the defendant, his/her attorney, or any other agent or representative of the defendant. Sec. 7.50-6 Hearing; Evidence. At the hearing, a hearing officer shall preside, shall hear testimony, and shall accept any evidence relevant to the existence or non-existence of a code violation. The strict rules of evidence applicable to judicial proceedings shall not apply to hearings authorized by this ordinance. Sec. 7.50-7 Eviction; Rights of the Occupants. No action for eviction, abatement of a nuisance, forcible entry, and detainer or other similar proceeding shall be threatened or instituted against an occupant of a dwelling solely because such occupant agrees to testify or testifies at a building code violation hearing. Sec. 7.50-8 Defenses to Building Code Violations. It shall be a defense to a building code violation charged if the owner, his attorney, or any other agent or representative proves to the hearing officer's satisfaction that: (A) The building code violation alleged in the notice does not in fact exist, or at the time of the hearing, the violation has been remedied or removed; (B) The building code violation has been caused by the current property occupants and that in spite of reasonable attempts by the owner to maintain the dwelling free of such violations, the current occupants continue to cause the violations; (C) An occupant or resident of the dwelling has refused entry to the owner or his agent to all or part of the dwelling for the purpose of correcting the building code violation. Sec. 7.50-9 Qualifications of Hearing Officers. (A) Prior to conducting proceedings under this ordinance, hearing officers shall successfully complete a formal training program that includes the following: (1) Instruction on the Rules of Procedure of the hearing that they will conduct; (2) Orientation to each subject area of the code violations they will administer; (3) Observation of administrative hearings; and (4) Participation in hypothetical cases, including rules of evidence and issuing final orders. (B) In addition, every hearing officer must be an attorney licensed to practice law in the State of Illinois for at least three (3) years. Sec. 7.50-10. Administrative Adjudication. Administrative Adjudication of violations of traffic regulations concerning the standing, parking, or condition of vehicles shall be as follows. (A) The City of McHenry hereby establishes a system of administrative adjudication of vehicular standing and parking violations and vehicle compliance violations as defined in this subsection. The administrative system shall have as its purpose the fair and efficient enforcement of City regulations through the administrative adjudication of violations of City ordinances regulating the standing and parking of vehicles, the condition and use of vehicle equipment, and the display of municipal wheel tax licenses within the City borders. For purposes of this section, "compliance violation" means a violation of a City regulation governing the condition or use of equipment on a vehicle or governing the display of a municipal wheel tax license. (B) The hearing officer referenced in Section 6, is hereby designated as the City's traffic compliance administrator authorized to adopt, distribute and process parking and compliance violation notices and other notices required by this section, collect money paid as fines and penalties for violation of parking and compliance ordinances, and operate an administrative adjudication system. The traffic compliance administrator also may make a certified report to the Secretary of State under Section 6-306.5 of the Illinois Vehicle Code. (C) A parking, standing, or compliance violation notice: 1) Shall specify the date, time and place of violation of a parking, standing, or compliance regulation; 2) Shall specify the particular regulation violated, 3) Shall specify the fine and any penalty that may be assessed for late payment, when so provided by ordinance; 4) Shall specify the vehicle make and state registration number; 5) Shall specify the identification number of the person issuing the notice; 6) Shall state that payment of the indicated fine, and of any applicable penalty for late payment, shall operate as a final disposition of the violation; 7) Shall contain information as to the availability of a hearing in which the violation may be contested on its merits; 8) Shall specify the time and manner in which a hearing may be had. (D) Service of the parking, standing, or compliance violation notice by affixing the original or a facsimile of the notice to an unlawfully parked vehicle or by handing the notice to the operator of a vehicle if he/she is present. A person authorized by ordinance to issue and serve parking, standing, and compliance violation notices shall certify as to the correctness of the facts entered on the violation notice by signing his/her name to the notice at the time of service or in the case of a notice produced by a computerized device, by signing a single certificate to be kept by the traffic compliance administrator attesting to the correctness of all notices produced by the device while it was under his/her control. The original or a facsimile of the violation notice shall be retained by the traffic compliance administrator, and there shall be a record kept in the ordinary course of business. A parking, standing, or compliance violation notice issued, signed and served in accordance with this section, or a copy of the notice, shall be prima facie correct and shall be prima facie evidence of the correctness of the facts shown on the notice. The notice or copy shall be admissible in any subsequent administrative adjudication or legal proceedings. (E) An opportunity for a hearing for the registered owner of the vehicle cited in the parking, standing or compliance violation notice in which the owner may contest the merits of the alleged violation, and during which formal or technical rules of evidence shall not apply; provided, however, that under Section 11-1306 of the Illinois Vehicle Code, to the lessee of a vehicle cited in the violation notice likewise shall be provided an opportunity for a hearing of the same kind afforded the registered owner. The hearings shall be recorded, and the person conducting the hearing on behalf of the traffic compliance administrator shall be empowered to administer oaths and to secure by subpoena both the attendance and testimony of witnesses and the production of relevant books and papers. Persons appearing at a hearing under this section may be represented by counsel at their expense. The ordinance may also provide for internal administrative review following the decision of the hearing officer. (F) Service of additional notices, sent by first class United States mail, postage prepaid, to the address of the registered owner of the cited vehicle as recorded with the Secretary of State, or, under Section I 1-1306 of the Illinois Vehicle Code, to the lessee of the cited vehicle at the last address known to the lessor of the cited vehicle at the time of lease. The service shall be deemed complete as of the date of deposit in the United Stated mail. The notices shall be in the following sequence and shall include but not be limited to the information specified herein: 1) Second Notice of Violation. This notice shall: a) specify the date and location of the violation cited in the parking, standing, or compliance violation notice; b) specify the particular regulation violated; c) specify the vehicle make and state registration number; d) specify the fine and any penalty that may be assessed for late payment when so provided by ordinance; e) specify the availability of a hearing in which the violation may be contested on its merits; f) specify the time and manner in which the hearing may be had. g) state that failure either to pay the indicated fine and any applicable penalty, or to appear at a hearing on the merits in the time and manner specified, will result in a final determination of violation liability for the cited violation in the amount of the fine or penalty indicated; h) state that, upon the occurrence of a final determination of violation liability for the failure, and the exhaustion of, or failure to exhaust, available administrative or judicial procedures for review, any unpaid fine or penalty will constitute a debt due and owing the City of McHenry. 2) A notice of final determination of parking, standing, or compliance violation liability. This notice shall be sent following a final determination of parking, standing, or compliance violation liability and the conclusion of judicial review procedures taken under this section. The notice shall: a) state that the unpaid fine or penalty is a debt due and owing the municipality; b) contain warnings that failure to pay any fine or penalty due and owing the municipality within the time specified may result in the municipality's filing a petition in the Circuit Court to have the unpaid fine or penalty rendered a judgment as provided by this section, or may result in suspension of the person's drivers license for failure to pay fines or penalties for ten or more parking violations under Section 6-306.5 or the Illinois Vehicle Code. (G) A notice of impending drivers license suspension. This notice shall: 1) be sent to the person liable for any fine or penalty that remains due and owing on ten or more parking violations; 2) state that failure to pay the fine or penalty owing within 45 days of the notice's date will result in the municipality notifying the Secretary of State that the person is eligible for initiation of suspension proceedings under Section 6-306.5 of the Illinois Vehicle Code; 3) state that the person may obtain a phetestatie copy of an original ticket imposing a fine or penalty by sending a self-addressed, stamped envelope to the municipality along with a request for the copy; 4) be sent by first class United State mail, postage prepaid, to the address recorded with the Secretary of State. (H) Final determinations of violation liability. A final determination of violation liability shall occur following failure to pay the fine or penalty after a hearing officer's determination of violation liability and the exhaustion of or failure to exhaust any administrative review procedures provided by ordinance. Where a person fails to appear at a hearing to contest the alleged violation in the time and manner specified in a prior mailed notice, the hearing officer's determination of violation liability shall become final: 1) upon denial of a timely petition to set aside that determination; or 2) upon expiration of the period for filing the petition without a filing having been made. (I) A petition to set aside a determination of parking, standing, or compliance violation liability may be filed by a person owing an unpaid fine or penalty. The petition shall be filed with and ruled upon by the traffic compliance administrator in the manner and within the time specified by ordinance. The grounds for the petition may be limited to: 1) the person have having been the owner or lessee of the cited vehicle on the date the violation notice was issued; 2) the person having already paid the fine or penalty for the violation in question; and 3) excusable failure to appear at or request a new date for a hearing. (J) After the determination of parking, standing or compliance violation liability has been set aside upon a showing of just cause, the registered owner shall be provided with a hearing on the merits for that violation. (K) Civil fines and applicable penalties for later payments for violations of vehicular standing, parking and compliance regulations, shall be applied pursuant to Chapter 13, Article X, Section 8, provided that the total amount of fine and penalty for any one violation shall not exceed $250.00: SECTION OFFENSE SETTLEMENT PENALTY IF PAID WITHIN: 48 HOURS OF THE VIOLATION 48 TO 72 HOURS AFTER VIOLATION 13-108 VEHICLE STICKER $25.00 $50.00 13-609 OVERTIME PARKING $ 5.00 $10.00 13-611 OVERTIME PARKING $ 5.00 $10.00 13-613 OVERTIME PARKING $ 5.00 $10.00 13-615 OVERTIME PARKING $ 5.00 $10.00 13-616 OVERTIME PARKING $ 5.00 $10.00 13-617 OVERTIME PARKING $ 5.00 $10.00 13-618 OVERTIME PARKING $ 5.00 $10.00 5/11-1303(A)(2B) PARKING, FIRE HYDRANT $10.00 $20.00 5/11-209(H) PARKING, FIRE LANE $10.00 $20.00 5/11-1301.3 PARKING, DISABILITIES $250.00 $500.00 ANY OTHER PARKING VIOLATION NOT LISTED ABOVE AND EXCLUDING THE UNAUTHORIZED USE OF PARKING PLACES RESERVED FOR PERSONS WITH DISABILITIES $ 5.00 $10.00 Sec. 7.50-11. Findings, Decision, and Order. At the conclusion of the hearing, the hearing officer shall make a determination on the basis of the evidence presented at the hearing as to whether or not a code violation exists. The determination shall be in writing and shall be designated as findings, decision and order. The findings, decision and order shall include: (A) the hearing officer's findings of fact; (B) a decision of whether or not a code violation exists based upon the findings of fact; and (C) an order that states the sanction or dismisses the case if a violation is not proved. (D) A monetary sanction for a violation under this ordinance shall not exceed the amount authorized by statute. A copy of the findings, decision and order shall be served on the defendant within 5 days after it is issued. Service shall be in the same manner that the report form and summons are served under Section 3 of this ordinance. Payment of any penalty or fine and the disposition of fine money shall be in the same manner as set forth in the Code. Civil fines and applicable penalties for late payment for code violations shall be applied pursuant to Chapter 1, Section 12, "Settlement of Offenses." Sec. 7.50-12: Review under Administrative Review Law. The findings, decision, and order of the hearing officer shall be subject to review in the 22nd Judicial Circuit Court of McHenry County, Illinois. The provisions of the Administrative Review Law, and the rules adopted pursuant thereto, shall apply to and govern every action for the judicial review of the findings, decision and order of a hearing officer under this ordinance. Section 13: Judgment on Findings, Decisions and Order. (A) Any fine, other sanction, or costs imposed, or part of any fine, other sanction, or costs imposed, remaining unpaid after the exhaustion of, or the failure to exhaust, judicial review procedures under the Administrative Review Law shall be a debt due and owing the City of McHenry, and, as such, may be collected in accordance with applicable law. (B) After expiration of the period within which judicial review under the Administrative Review Law may be sought for a final determination of the code violation, the City may commence a proceeding in said circuit court for purpose of obtaining a judgment on the findings, decision and order. (C) Nothing in this section shall prevent the City from consolidating multiple findings, decision, and orders against a person in such of a proceeding. Upon commencement of the action, the City shall file a certified copy of the findings, decision and order, which shall be accompanied by a certification that recites facts sufficient to show that the findings, decision, and order was issued in accordance with this ordinance and the applicable municipal ordinance. Service of the summons and a copy of the petition may be made by any method provided for by Section 2-203 of the Code of Civil Procedure or by certified mail, return receipt requested, provided that the total amount of fines, other sanctions, and costs imposed by the findings, decision and order does not exceed $2,500. If the court is satisfied that the findings, decision and order was entered in accordance with the requirements of this ordinance and 651LCS 5/1-2.2-1 et seq and the applicable municipal ordinance and that the defendant had an opportunity for a hearing under this ordinance and for judicial review as provided: 1) the court shall render judgment in favor of the municipality and against the defendant for the amount indicated in the findings, decision and order, plus costs; 2) the judgment shall have the same effect and may be enforced in the same manner as other judgments for recovery of money; and 3) the court may also issue any other orders and injunctions that are requested by the City to enforce the order of the hearing officer to correct a code violation. Sec. 7.50-14: Sanctions applicable to owner; property. The order to correct a building code violation and the sanction imposed by the City as the result of a finding of a building code violation under this Chapter shall attach to the property as well as to the owner of the property, so that a finding of a building code violation against one owner cannot be avoided by conveying or transferring the property to another owner. Any subsequent transferee or owner of property takes subject to the findings, decision and order of a hearing officer under this ordinance. SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Passed and approved this 2IST day of January, 2008. Voting Aye: $ANTI, GLAB, SCHAEFER, MURGATROYD, WIMMER, PETERSON, CONDON Voting Nay: NONE Not Voting: NONE Absent: NONE Abstain: NONE APPROVED: Mayor (SEAL) ATTEST: